Mirll v. University of Central Oklahoma

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TERESA MIRLL, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-1143-G

)

STATE OF OKLAHOMA ex rel. )

UNIVERSITY OF CENTRAL )

OKLAHOMA et al., )

)

Defendants. )

ORDER

Plaintiff Teresa Mirll filed this lawsuit on November 6, 2019, alleging violations of

her federal and state constitutional rights against three individuals: Charlotte Simmons,

PhD, in her individual capacity as Vice President of Academic Affairs for the University

of Central Oklahoma (“UCO”); Darla Sherman, in her individual capacity as Tutoring

Center Manager for UCO; and Erika Cerda, in her individual capacity as Employee

Relations Director for UCO. See Pet. (Doc. No. 1-1). An amended complaint was filed on

January 7, 2020. See Am. Compl. (Doc. No. 4).1

Now before the Court is a Motion to Dismiss filed by Defendant Cerda (Doc. No.

8), as well as Plaintiff’s Response (Doc. No. 15) and Defendant Cerda’s Reply (Doc. No.

16). Also pending is a Motion to Dismiss filed jointly by Defendants Simmons and

1 All claims against a fourth defendant, State of Oklahoma ex rel. University of Central

Oklahoma, have been dismissed by separate order.

Sherman (Doc. No. 14), to which Plaintiff has responded (Doc. No. 17), and on which

Defendants have replied (Doc. No. 22).2

I. Plaintiff’s Allegations

In her Amended Complaint, Plaintiff alleges that Defendants violated her rights in

connection with her employment at UCO. Plaintiff alleges that she was hired by Defendant

Sherman in January 2014 as a Writing Tutor and was eventually promoted to the position

of Tutoring Center Administrative Assistant. See Am. Compl. ¶¶ 5-8.

Plaintiff alleges that after she began working as the Administrative Assistant she

discovered “numerous issues,” including the fact that a certain tutor “consistently reported

and was paid for time he did not work.” Id. ¶¶ 10-11. Plaintiff reported the tutor’s time

theft to Defendant Sherman, but Defendant Sherman “made clear that she had no intention”

of remedying the conduct. Id. ¶¶ 12-14. Plaintiff relayed her concerns to Defendant

Simmons, but “no remedial action was taken,” and Defendant Sherman again expressed

her desire not to take corrective measures. Id. ¶¶ 15-19.

On or about December 15, 2017, Plaintiff then “informed Defendant Cerda” that the

tutor “was fraudulently reporting his work hours, i.e., stealing public funds,” and that

nothing had been done despite Defendant Sherman’s and Defendant Simmons’ knowledge

of the issue. Id. ¶ 21. Later that same day, “Defendants Cerda and Simmons fired

Plaintiff.” Id. ¶ 23 (“Defendant Cerda said a collective decision was made, including [by]

Defendant Simmons, to terminate Plaintiff’s employment.”).

2 Because the same arguments are raised by both Motions, the Court cites only to the first-

filed Motion, Response, and Reply.

Plaintiff alleges that her “reports of unlawful activity” were identified as the reason

for her termination and that “the parties at issue admitted they were retaliating against

Plaintiff for her First Amendment protected activity.” Id. ¶ 24. “Specifically, Defendant

Cerda stated that Plaintiff spent too much time reporting [the tutor’s] misconduct, rather

than focusing on her own work.” Id. ¶ 25. Plaintiff alleges that her own work performance

had been satisfactory and that UCO’s guidelines were not followed in terminating Plaintiff.

See id. ¶ 26.

Plaintiff brings two claims, each against all three individual Defendants in their

individual capacities: (i) violation of Plaintiff’s First Amendment right to freedom of

speech, pursuant to 42 U.S.C. § 1983; and (ii) conspiracy to deprive Plaintiff of her

constitutional right to free speech, in violation of 42 U.S.C. § 1985(3). See id. ¶¶ 28-39.

Plaintiff seeks compensatory damages as well as punitive damages. See id. ¶ 42.

II. Standard of Review

In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true

all well-pleaded factual allegations in the complaint and view[s] them in the light most

favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation

omitted); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o withstand

a motion to dismiss, a complaint must contain enough allegations of fact to state a claim to

relief that is plausible on its face.” (internal quotation marks omitted)). Bare legal

conclusions in a complaint are not entitled to the assumption of truth; “they must be

supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).

III. Defendants’ Motions

A. Plaintiff’s First Amendment Claims

Defendants first argue that Plaintiff fails to state a viable claim for violation of her

First Amendment rights based on Defendants’ alleged conduct. “To state a claim under §

1983, a plaintiff must allege the violation of a right secured by the Constitution and laws

of the United States, and must show that the alleged deprivation was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, Defendants

do not dispute that they were acting under color of state law in connection with Plaintiff’s

termination from her position as Administrative Assistant. See id. at 50 (“[G]enerally, a

public employee acts under color of state law . . . while exercising his responsibilities

pursuant to state law.”). Defendants’ challenge is broadly aimed at whether Plaintiff can

show that, in doing so, Defendants “subject[ed]” Plaintiff, “or cause[d] [Plaintiff] to be

subjected,” “to a deprivation of . . . her lawful rights.” Porro v. Barnes, 624 F.3d 1322,

1327 (10th Cir. 2010) (internal quotation marks omitted).

A government employee “does not relinquish First Amendment rights to comment

on matters of public interest by virtue of government employment.” Connick v. Mvers,

461 U.S. 138, 140 (1983). “Rather, the First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “However, the interests of public

employees in commenting on matters of public concern must be balanced with the

employer’s interests in promoting the efficiency of the public services it performs through

its employees.” Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011)

(internal quotation marks omitted).

Through two decisions—Pickering v. Board of Education, 391 U.S. 563, 568

(1968), and Garcetti, 547 U.S. at 417—the Supreme Court has articulated five factors to

be considered in analyzing public-employee free-speech cases. Leverington, 643 F.3d at

724 (explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom

of speech retaliation claims is a five step inquiry” that will be referred to as “the

Garcetti/Pickering analysis” (internal quotation marks omitted)). The Tenth Circuit has

summarized these factors as follows:

(1) whether the speech was made pursuant to an employee’s official duties;

(2) whether the speech was on a matter of public concern; (3) whether the

government’s interests, as employer, in promoting the efficiency of the

public service are sufficient to outweigh the plaintiff’s free speech interests;

(4) whether the protected speech was a motivating factor in the adverse

employment action; and (5) whether the defendant would have reached the

same employment decision in the absence of the protected conduct.

Eisenhour v. Weber Cty., 744 F.3d 1220, 1227-28 (10th Cir. 2014) (internal quotation

marks omitted). “The first three elements are issues of law for the court to decide, while

the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884 F.3d

939, 945 (10th Cir. 2018) (internal quotation marks omitted).

1. Whether the Speech Was Made Pursuant to Official Duties

Defendants contend, first, that Plaintiff’s alleged communications regarding the

tutor’s fraudulent activities were made not as a citizen but pursuant to her official duties,

such that First Amendment protection does not apply. See Hesse v. Town of Jackson, 541

F.3d 1240, 1249 (10th Cir. 2008) (“If the employee speaks pursuant to his official duties,

then there is no constitutional protection because the restriction on speech simply reflects

the exercise of employer control over what the employer itself has commissioned or

created.” (internal quotation marks omitted)).3

The Tenth Circuit takes a “broad view” of what constitutes speech that is pursuant

to an employee’s official duties, and speech may be so categorized “even if it deals with

activities that the employee is not expressly required to perform.” Thomas v. City of

Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008) (internal quotation marks omitted).

Courts examine the instances of speech on a case-by-case basis, “looking both to the

content of the speech, as well as the employee’s chosen audience, to determine whether the

speech is made pursuant to an employee’s official duties.” Rohrbough v. Univ. of Colo.

Hosp. Auth., 596 F.3d 741, 746 (10th Cir. 2010) (noting that courts focus on whether the

speech stemmed from and was of the type of work the employee was paid to do). “[T]he

3 Defendant Cerda attempts to rely upon a job posting that is attached to her Motion as

evidence of Plaintiff’s duties while employed at UCO. See Def. Cerda Mot. Ex. 1 (Doc.

No. 8-1). The Court has disregarded this document, which was not referenced in the

Amended Complaint, and has likewise disregarded a declaration submitted by Plaintiff

(Doc. No. 15-1) as matters outside the pleadings and, therefore, not properly reviewable in

determining a Rule 12(b)(6) motion. See Fed. R. Civ. P. 12(b)(6); Lowe v. Town of

Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).

ultimate question is whether the employee speaks as a citizen or instead as a government

employee.” Id. (internal quotation marks omitted).

Here, the relevant pleading avers that Plaintiff was employed as a Tutoring Center

Administrative Assistant when she “discovered numerous issues,” including the tutor’s

time theft. Am. Compl. ¶ 11. When Plaintiff reported the misconduct, she explained to

her supervisor, but also to the Employee Relations Director and the Vice President of

Academic Affairs, that “based on [her] faculty training, time theft constituted

embezzlement and was unlawful.” Id. ¶ 14; see also id. ¶ 30 (“[Plaintiff’s] reports were

calculated to disclose impropriety and other malfeasance by Defendants.”). “Plaintiff’s

reports of unlawful activity were identified as the very reason for her termination,” and

“Defendant Cerda stated that Plaintiff spent too much time reporting Bilbrey’s misconduct,

rather than focusing on her own work.” Id. ¶¶ 24, 25 (emphasis added).

Viewing these factual allegations in the light most favorable to Plaintiff, Plaintiff

has pleaded, beyond mere speculation, that her reporting was made as a public citizen rather

than as an employee. Although Plaintiff sought action from several employees and alleges

that she eventually “escalated” her complaint, id. ¶ 21, the pleading does not demonstrate

that Plaintiff merely went up the chain of command in seeking resolution of the issue, as

Defendants argue. Cf. Rohrbough, 596 F.3d at 747 (“[S]peech directed at an individual or

entity outside of an employee’s chain of command is often outside of an employee’s

official duties.”). Similarly, although Defendants argue that such reporting was “part of

[Plaintiff’s] job duties,” Def. Cerda Reply at 3, at this stage the Court is limited to

reviewing the Amended Complaint only. The pleading in no way confirms that view. See

Lane v. Franks, 573 U.S. 228, 240 (2014) (noting that the “critical question” is “whether

the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether

it merely concerns those duties”).

For purposes of Rule 12(b)(6), Plaintiff has adequately and plausibly pleaded that

her speech was not made pursuant to her employment duties. See id. (“[T]he mere fact that

a citizen’s speech concerns information acquired by virtue of his public employment does

not transform that speech into employee—rather than citizen—speech.”); Lobato v. N.M.

Env’t Dep’t, 838 F. Supp. 2d 1213, 1227 (D.N.M. 2011) (“A court may find that an

employee spoke out as a citizen even where the expression was made at work, and involved

actions occurring in the workplace.”).

2. Whether the Speech Was on a Matter of Public Concern

To adequately plead this element, Plaintiff must allege that her speech “involve[d]

a matter of public concern and not merely a personal issue internal to the workplace.”

Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). Defendants argue that

because Plaintiff’s complaints focused upon a single tutor’s malfeasance, and because

Plaintiff requested that remedial action be taken, the complaints “involved internal

employee disputes” rather than a matter of public concern. Def. Cerda Mot. at 7.

Although Plaintiff’s pleading does portray her complaints as focused upon a single

tutor, construed in her favor the allegations reflect that they nonetheless involved more

than a mere personal grievance. See, e.g., Am. Compl. ¶¶ 10 (alleging that Plaintiff

complained that the tutor was “mismanaging public funds”), 17 (alleging that Plaintiff

explained that the conduct “resulted in thousands of dollars of public funds being stolen

over the years). “Speech which discloses any evidence of corruption, impropriety, or other

malfeasance on the party of [government] officials, in terms of content, clearly concerns

matters of public import.” Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988). Plaintiff

therefore has adequately pleaded that her speech involved a matter of public concern for

purposes of the Garcetti/Pickering analysis.

3. Qualified Immunity

Defendants argue that they are entitled to qualified immunity on Plaintiff’s First

Amendment Claim. “Qualified immunity protects officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Thomas v. Kaven, 765 F.3d 1183, 1194

(10th Cir. 2014) (internal quotation marks omitted). “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Stewart

v. Beach, 701 F.3d 1322, 1330 (10th Cir. 2012) (internal quotation marks omitted).

While a defendant may assert the defense of qualified immunity in a motion to

dismiss, doing so “subjects the defendant to a more challenging standard of review than

would apply on summary judgment.” Thomas, 765 F.3d at 1194 (internal quotation marks

omitted). “At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the

complaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v. Pelletier,

516 U.S. 299, 309 (1996) (emphasis omitted). “In resolving a motion to dismiss based on

qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged

make out a violation of a constitutional right, and (2) whether the right at issue was clearly

established at the time of defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d

1185, 1188 (10th Cir. 2013) (internal quotation marks omitted); see Robbins, 519 F.3d at

1249.

Defendants’ assertion of qualified immunity rests upon their contentions of

inadequate pleading addressed above. See Def. Cerda Mot. 8-9. But as noted above, “the

facts that [Plaintiff] has alleged” do “make out a violation of a constitutional right.” Keith,

707 F.3d at 1188 (internal quotation marks omitted). Further, from the wide range of

authorities cited above it is clear that these First Amendment rights were clearly established

at the time of Plaintiff’s termination in December 2017. See supra; Am. Compl. ¶¶ 8, 20,

23; see also Prager v. LaFaver, 180 F.3d 1185, 1192 (10th Cir. 1999) (finding that prior

decisions “clearly established that an employee’s strong interest in disclosing

governmental corruption outweighs unsubstantiated assertions of workplace disruption and

put [the defendant] on notice that the conduct alleged in [the plaintiff’s] complaint [of

suspension and termination of employment] would violate the law”). Dismissal of these

claims is not warranted on this basis. See generally James W. Moore, 2 Moore’s Federal

Practice § 12.34[4][b] (3d ed. 2019) (noting that establishment of the defense of qualified

immunity ordinarily requires factual review and should not support dismissal for failure to

state a claim).4

4 This finding “does not foreclose Defendants from reasserting their entitlement to qualified

immunity on a motion for summary judg[]ment should [Plaintiff’s] allegations in the

complaint prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996)

(reversing a grant of qualified immunity on a motion to dismiss where it was “premature,

absent a factual record”). The Court makes no finding at this stage as to whether

Defendants will be able to show entitlement to qualified immunity when Plaintiff “can no

B. Plaintiff’s Conspiracy Claim

Plaintiff additionally alleges that Defendants “conspired to deprive Plaintiff of her

right to free speech.” Am. Compl. ¶ 36; see also id. ¶¶ 34-39 (citing 42 U.S.C. § 1985(3)).

Defendants argue that Plaintiff fails to state a claim pursuant to § 1985(3), because the

Amended Complaint lacks any allegation of class-based or racially discriminatory animus

or a factual basis to support such an allegation. See Def. Cerda Mot. at 9-10 (citing Bisbee

v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994) (“Here, plaintiff has made no allegations of

race or class-based animus. As such, he has not stated a claim under section 1985.”).

Plaintiff responds that she “intended to assert her conspiracy claim under § 1983,” not §

1985(3), and that she has sufficiently stated a claim under that statute. Pl.’s Cerda Resp.

at 14-15.

To adequately allege a conspiracy claim under § 1983, a plaintiff must allege

specific facts that show “a combination of two or more persons acting in concert” and “an

allegation of a meeting of the minds, an agreement among the defendants, or a general

conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010);

see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). Plaintiff’s sole

relevant factual averment is the allegation that “Defendant Cerda said a collective decision

was made, including Defendant Simmons, to terminate Plaintiff’s employment.” Am.

Compl. ¶ 23; see Pl.’s Cerda Resp. at 15. This isolated statement does not allow a

reasonable inference to be drawn that these three Defendants “acted in concert to deprive

longer rest on the pleadings.” Thomas, 765 F.3d at 1194 (internal quotation marks

omitted).

[Plaintiff] of [her] constitutional rights.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504,

533 (10th Cir. 1998).°

CONCLUSION

As outlined herein, the Motions to Dismiss (Doc. Nos. 8, 14) are GRANTED IN

PART and DENIED IN PART. Plaintiff's § 1983 claims for violation of the First

Amendment shall proceed. Plaintiff's conspiracy claims are dismissed without prejudice

pursuant to Federal Rule of Civil Procedure 12(b)(6).

Defendants’ Motion to Strike (Doc. No. 25) is DENIED AS MOOT.

IT IS SO ORDERED this 4th day of June, 2020.

CHARLES B. GOODWIN

United States District Judge

> Plaintiff requests that the Court consider allowing her leave to amend in lieu of dismissal

of this claim but fails to adequately inform the Court how amendment would resolve these

deficiencies. Cf. LCvR 15.1 (requiring that the proposed pleading be submitted with a

motion to amend).

12